Smith v. Armistead's Ex'rs

COLLIER, C. J. — The reason for which the rejection of-the testimony of the defendant's witness was asked, is clearly insufficient. It was not necessary to show, by positive proof, that the note declared on, was the one to which the testator referred, in the conversation which it was attempted to prove. The jury should judge of its identity from the facts stated, and might determine the point as satisfactorily from the description given of it, (if precise and accurate,) as from the positive declaration of a witness; especially if other testimony was adduced showing that the testator had no other note founded on the same consideration. In considering the admissibility of evidence, the inquiry to be made, is, whether it is pertinent, and does it tend to establish a fact material, to the case or defence ; the question of its sufficiency addresses itself to the jury under the instruction of the Court. It may be conceded, in the present case, that the testimony which the witness was allowed to give, disconnected from every thing else, or unaided by further proof, was entirely unimportant; but it cannot be assumed, that the de [701] fendant had nothing further to offer. He may, perhaps, if allowed to proceed, have shown that the testator said, he did not intend to require payment of the note, and had relinquished the hire reserved by it, or some other fact connected with the gift, showing that the defendant was not liable to its payment. The testimony cannot be said to be so palpably irrelevant, as to be incapable of assistance by the proof of other facts. .In Innerrarity v. Byrne, 8 Porter’s Rep. 176, it was said, “if testimony is offered, which in itself is inoperative and void, and is not proposed to be connected with any thing else which may give it validity, the Court, if desired, cannot refuse to reject it.” And in Mardis’ admr’s. v. Shackleford, 4 Ala. Rep. 501, we held, that “if evidence be irrelevant at the time it is offered, it is not error to reject it, because other evidence may afterwards be given, in connection with which, it would become competent. If it would be relevant in conjunction with other facts, it should be proposed in connection with those facts, and an offer to follow the evidence proposed, with proof of those facts at a proper time.” Now we will not say, that the Court may not have rejected the testimony .of the witness, because its pertinency was not shown. If such had been the decision, the defendant might, perhaps, have made a disclosure of facts which he expected to prove, that would have removed the objection. This he was prevented from doing, by the Court’s ruling, that the evidence adduced was inadmissible to show, that the note of which the testator spoke, was the one on which the action was founded. As then, the rejection of the witness for the reason which induced it, was erroneous, and may have been prejudicial to the defendant, it was an error of which he may take advantage. The second question raised upon the bill of exceptions is this, is the book in which the clerk of a County Court records a deed, evidence of its contents, without first accounting for the absence of the original. In Fryer v. Dennis, 2 Ala. Rep. 144, this-precise question arose. We-there said, that “our statutes in regard to the registration of deeds of laud, make a certification of their acknowledgment, or probate, written upon, or under the same, evidence of their genuineness;” and further provides, that “ if the original deed, or conveyance be lost, or mislaid, or be destroyed by time or accident, and not in the [702] party’s power to produce, the record of such deed, or conveyance, and the transcript of such record, certified to be a true transcript by the clerk in whose office the record is kept, shall be received in evidence.” This statute, supposing it to be applicable to personal estate, we held, did not authorize the copy of a deed, unless a sufficient reason was shown for the non-production of the original; and independent of the statute, we considered it inadmissible, because it did not appear that the higher evidence was not in reach of the party, or the process of the Court. [See also, 3 Phil. Ev. C. & H.’s notes, 1208-9; O’Brien v. Kennedy, at the last term.] Although the transaction, of matter to which a writing relates, may be proved entirely independent of it, yet if its contents are inquired after, it must be proved, or its absence excused; for as to these, it is the best evidence. True, there are some cases which countenance the idea, that parol evidence of the contents of papers may be given where they do not form the foundation of the cause, but merely relate to some collateral fact. [McFadden v. Kingsbury, 11 Wend. Rep. 667; Mumford v. Browne, Anth. N. P. 40; Southwick v. Stevens, 10 Johns. Rep. 443; Lowry v. Pinson, 2 Bailey Rep. 324 ; Tucker v. Welch, 17 Mass. Rep. 160.] Two of these cases, and perhaps a dictum in another, thus lay down the law, but these, it is shown by the learned annotators upon Phillips, go beyond what is allowable. [See note, 860, 3 Phil. Ev. 1207.] It is supposed by the defendant’s counsel, that inasmuch as the defendant is not a party to the deed, it was competent for him to prove its contents by secondary evidence. There is no exception to the rule which thus relaxes it. If the paper is in the hands of a third person, under such circumstances, that the law will not compel him to produce it, then secondary evidence is admissible; but if he who has the custody of it, is within reach of the Court, ordinarily, a subpoena duces tecum would be proper to coerce its production. Without adding more upon this point, it is clear, that the defendant laid no foundation for the admission of secondary evidence, and if he proposed to prove the contents of the deed, the record was properly excluded. But for the error in the first point considered, the judgment is reversed and the cause remanded.